A Clean-Up, Not a Burial

The city can have the last word on sexually oriented businesses.

In an 11-0 vote, the Shelby County Commission recently passed an ordinance regulating "sexually oriented businesses" (the aptly named S.O.B.s). While most will say it's about time, civil libertarians might worry about a New Puritanism. Fear not: This is not some Moral Majority crusade to Disney-fy Memphis but a relatively moderate regulation to weed the industry of a few bad apples.

Secondary effects: Throughout the County Commission's discussion of this ordinance, I stressed that it is not our place to shut down all adult businesses based on our moral disapproval. Instead, we must regulate such businesses to narrowly target what the courts call their "secondary effects" — increasing crime and decreasing property values in surrounding areas.

We know such secondary effects are here in Memphis, as evidenced by the studies prepared and compiled by the national experts we hired.

Background checks: The new ordinance is provided under state law as a model for counties to adopt. It says adult-business owners and employees must get an operating license. The license will involve a background check to ensure that within recent years they haven't committed certain crimes associated with S.O.B.s — prostitution, public indecency, rape, exploitation of minors, etc. If an owner or employee commits such a crime, their license is revoked for five years.

County consultant Eric Kelly, an Austin, Texas-based national expert on these issues, has worked on similar ordinances throughout the country. He's told us that in cities with such laws, most S.O.B.s continue to operate but in compliance with the law. Businesses that base their profits on prostitution and other illegal activities fall by the wayside. The intent here is not to ban all S.O.B.s but to make them behave themselves.

That's not to say the ordinance is perfect. A few doubts nag.

Alcohol: First, the model ordinance bans alcohol at S.O.B.s. Not even "brown bagging" is allowed. Reasonable people can disagree about the wisdom of this provision, but my vote was influenced by some practical and legal realities.

All S.O.B.s in Shelby County are in the city of Memphis. Once the county adopted the state-supplied model S.O.B. ordinance, it applies, by default, inside Memphis, unless the city adopts its own new law. If the county removed the liquor ban or changed any other part of the model law, it could not apply inside Memphis, making our action almost meaningless.

At the same time, my consultations with City Council members made me think it likely the city would adopt its own ordinance, likely one without the liquor ban. In such a case, the county's ordinance could serve as a useful "backstop" to the city's. That is, S.O.B. operators mulling a court challenge to the city ordinance might think twice before doing so, since invalidating the city law would only result in the tougher county ordinance automatically becoming effective inside Memphis.

Kelly tells us the alcohol ban needn't kill all adult businesses in Memphis. Instead, it will force S.O.B.s to change their business model so they don't rely on liquor sales for their profits, as S.O.B.s in other cities have done. But if the City Council wishes, it can enact its own ordinance allowing alcohol.

Bookstores: The ordinance regulates all adult bookstores the same as strip clubs, even bookstores without private booths for viewing porn and engaging in sex acts. Since adult bookstores without the infamous booths have less of a connection to secondary effects and more of a First Amendment argument that they promote "speech" rather than "conduct," I am sponsoring a resolution encouraging the sheriff to enforce this law only on those bookstores with "on-site viewing."

Zoning: Finally, the ordinance fails to address the problem of long-established S.O.B.s operating in residential areas (rather than the industrial-zoned areas where they belong), simply because they were grandfathered in under our zoning laws. To address this problem, I am sponsoring land-use code changes which would remove such grandfather protections for businesses that violate the S.O.B. ordinance. Over the long term, we want adult businesses in industrial zones, not residential ones.

Our new ordinance comes not to bury adult businesses but to clean them up. It's one that neither Jerry Falwell nor Larry Flynt would like, which is fine by me.

Shelby County commissioner Steve Mulroy is a professor of law at the University of Memphis, where he teaches constitutional law, including First Amendment issues.